I think the defendant's appeal from the judgment of the court below, reversing a judgment of the trial court in her favor, is well founded and should be sustained. This is an action by the plaintiff, the vendee of real property under an executory contract, to recover damages from the defendant, the vendor, for a breach of the contract on her part. The damage claimed is the sum of $500, being the amount paid down by the plaintiff upon the contract at the time of its execution, and the further sum of $166.60, being expenses incurred by him in examining the title, with interest on these sums from the 17th of March, 1892. The trial court, after a hearing, dismissed the complaint on the merits, but on appeal the judgment was reversed and a new trial granted.
It does not appear from the order that the reversal was upon the facts, and, therefore, we must assume that it was upon the law. This is a short decision under section 1022 of the Code, and in such cases the rule is well settled that all the facts necessary to support the judgment are deemed to be found, and all facts inconsistent with it, claimed by the *Page 404 defeated party, are deemed to be negatived. (Amherst College v.Ritch, 151 N.Y. 282; Marden v. Dorthy, 160 N.Y. 46;National Harrow Co. v. Bement, 163 N.Y. 505.) In the absence of some valid exception, the only question that this court can review in such a case is, whether upon the facts found by the trial court the legal conclusion followed, and in this case the question is, whether upon the facts found the plaintiff's complaint should have been dismissed, as it was. (Bomeisler v.Forster, 154 N.Y. 229.) The principles governing actions of this character are well settled. The plaintiff in this case, who is the vendee under the contract, was bound to show that he had performed the contract on his part, tendered performance to the vendor on the law day and demanded performance on her part, or, failing so to do, he must show that such tender would have been useless or an idle ceremony on his part, for the reason that it was impossible for the defendant, the vendor, to perform on her part. (Ziehen v. Smith, 148 N.Y. 558; Higgins v.Eagleton, 155 id. 466; Simis v. McElroy, 160 id. 156.) The findings in this case were not set aside and they must control the decision in this court. There is no finding in the record that the plaintiff ever performed on his part or offered to perform or tendered performance; but since his complaint was dismissed, it must be assumed that all these facts were negatived or found against him. There is no finding that the defendant failed to perform or was unable to perform, but, on the contrary, since she succeeded at the trial, findings just the other way were made or must be assumed to have been made. That is, there is a finding in the record now before us that the defendant was at the law day ready and willing to perform the contract on her part. These findings of the trial court not having been set aside by the Appellate Division are still the only findings in the case, and, therefore, the plaintiff is without any finding whatever, either that he has performed himself or that the defendant, the vendor, failed to perform on her part or that she was unable to perform. The decision of the learned court below cannot, therefore, be sustained unless the record discloses *Page 405 some error of law which would have justified a reversal, and to my mind it is impossible to state any such error. When the reversal of the Appellate Division is upon the law, as in this case, in order to sustain a reversal here, it must appear that some exception was taken on the trial raising a question of law, and that such question was erroneously decided. (Schoonmaker v.Bonnie, 119 N.Y. 566.) When the court disposes of the issues in a case by the short decision authorized by section 1022 of the Code, without stating separately the facts found and the conclusions of law as formerly, only one exception is provided for, and that is to the decision itself and not to the reasons or grounds of the decision. That exception enables the defeated party to review all questions of law and fact in the case, and if there was evidence to sustain any material fact necessary to the cause of action or defense of the party defeated, the court below may reverse the judgment upon the facts found, although there also may be evidence the other way in support of the findings of the successful party.
It is not claimed and it cannot be claimed that the finding in defendant's favor, to the effect that she was able and willing to perform, is without evidence to support it. Nor is it claimed that any improper evidence for the defendant was received at the trial. Hence, there is nothing left for this court to examine except the question whether any material finding of fact is without evidence to sustain it. (National Harrow Co. v.Bement, supra.) The learned counsel for the plaintiff does not claim that there is any such finding in the record, but he has argued the case precisely as if the reversal, which he seeks to sustain, was upon the facts. It appears, however, that the learned trial judge, after making his decision dismissing the complaint, stated the grounds or reasons for the decision. Among other things he stated that "there is no evidence before the court that Bernard McKenna was insane at the time he deeded this property to the defendant nor sufficient to create a reasonable doubt as to his sanity at this time." An exception was filed to this statement or remark and that is *Page 406 the statement that is said to lack evidence to support it. The statement was that there was no evidence to show that defendant's grantor was insane and not sufficient evidence to create a reasonable doubt on that point. This is simply a recital by the trial judge of something that did not appear on the trial. It is not a finding of fact or a finding of any kind. It is simply a reason for the decision or findings previously stated. No such fact was in issue under the pleadings and no such question was in controversy between the parties. No such fact, if fact it may be called, existed when the contract was made, and it has nothing to do with the obligations of the parties under the contract. It is a mere statement of the absence of certain evidence at the trial. When it is called a finding of fact or of law, it is only another way of saying that there is no evidence in the record to show that there was no evidence before the court that a certain person was insane. That is that there was no evidence to prove a negative. But the learned trial judge found that the defendant's grantor was not insane since he dismissed the complaint. That is a finding of a fundamental fact supported by evidence, and, it having been so found, the statement that there was no evidence the other way is wholly immaterial. When a court finds facts which control the case, it does not detract from these findings to state that there was no evidence the other way; it rather affirms the finding made and certainly cannot weaken it. It is enough that the evidence before the trial court justified the finding which it made that the defendant's grantor was not insane. It must be remembered that the issue tendered by the plaintiff in his complaint was that the defendant's grantor at the time of the conveyance was a lunatic, and, hence, that the conveyance was void and conferred no title upon the defendant. The plaintiff was bound to prove that allegation. It was not enough to create a suspicion as to his soundness of mind. We have seen that the only exception provided for by the section of the Code referred to is to the decision itself, and, therefore, the plaintiff took nothing by the special exception to the statement of the trial judge that there was no evidence in favor of *Page 407 the contention to the contrary of the fact found, which was that the defendant's grantor was not insane. This assertion may be subjected to a very fair and certain test. Suppose that the court had made separate findings of all the facts with his general conclusion of law, as he might and as he was formerly obliged to, and after finding specifically that the defendant's grantor was not insane, as is now implied in his decision, and that finding was supported by evidence, as it is now in the decision, and he was requested by the plaintiff to find also that there was some evidence the other way, that is, in support of the contention that he was insane, and the court refused so to find, and there was an exception to such refusal, would that refusal to find as to evidentiary facts constitute grounds for reversal in this court? It certainly would not so long as the finding in favor of the defendant was supported by evidence (Crim v.Starkweather, 136 N.Y. 637); and it was always the law in this court that a judgment could not be reversed for a refusal by the trial court, at the request of the defeated party, to find even a material fact unless it was conclusively established (Koehler v. Hughes, 148 N.Y. 507), and now since the change in the Code that rule is held more strictly than ever. (National Harrow Co. v. Bement, supra.) No one claims that the fact in this case, if it be a fact, which was determined adversely to the plaintiff, was conclusively established. When the facts found are supported by evidence, as they are here, a finding that there was some or not any evidence the other way cannot possibly be material. This court cannot reverse a judgment or sustain a reversal below where the evidence was sufficient, for the sole reason that the trial court stated in his decision that there was no evidence to the contrary. That statement, whether right or wrong, was not a subject of exception any more than if it had been made by the court upon the trial or submission of the case. (Rutherford v.Schattman, 119 N.Y. 604.) The case is a very plain one in this respect, that it has not yet been found by any court that the plaintiff performed his contract or offered to perform. Nor that the *Page 408 defendant committed any breach on her part or was for any reason unable to perform. How the plaintiff can recover in this situation, I am unable to perceive. The plaintiff's counsel has argued no exception taken at the trial, and the court has not been able to find any exception in the record, except that filed after the decision to a statement that there was no evidence of a certain fact claimed by the defeated party, and which seems to me is wholly insufficient as a basis for sustaining the reversal below.
But quite apart from this the statement of the trial judge, that there was no evidence that the defendant's grantor was insane, was entirely correct. There is not a shred of evidence in the case to show that he was insane, except the depositions contained in the lunacy proceedings taken in Ireland, where the defendant's grantor then lived, and when he was beyond the jurisdiction of the court, and which proceedings had been vacated by the order of the court. These depositions were hearsay and not admissible to prove the issue made by the complaint, and though they were admitted, the court had the right to hold in the end that they proved nothing. The plaintiff's counsel practically admits, as he must, that these written statements of persons in Ireland touching the mental condition of the party were not admissible to prove that the defendant was unable to convey good title at the law day. But he insists that the court having admitted them, though erroneously, was bound by them and could not say, as he did when deciding the case, that they had no probative force, and he cites a case to prove that proposition. (Van Deusen v. Sweet, 51 N.Y. 378.) But it will be seen, I think, upon reading the case, that it holds nothing of the kind. The proposition that a court, if it happens to receive hearsay evidence improperly and against the objection and exception of the party against whom it was offered, cannot disregard it when deciding the case, does not strike me as reasonable or sound. Testimony which has no probative force inherently is not changed in character by a ruling admitting it at the trial against the objection of the opposite party. It *Page 409 is just as worthless after admission as it was before, and a judge who admitted it does not commit an error by stating in the decision that it proves nothing, and that was the effect of the statement made by the learned trial judge in this case as one of the reasons for his decision. When the plaintiff's counsel offered the statements of third parties to prove that the defendant's grantor was insane, and succeeded in putting them into the case against the objection of his opponent, he took the chances of a decision by the court that they proved nothing. The plaintiff cannot now complain because the court in deciding the case refused to give effect to incompetent testimony which had no tendency to prove any material fact. He had no right to rely upon testimony which he now admits and could have known at the trial to be inadmissible. The findings in this case, as above remarked certainly sustain the judgment, and there was no error of law committed at the trial which justified a reversal of the judgment. The difficulty in the case, so far as the plaintiff is concerned, is that whereas the court below evidently intended to reverse upon the facts, as it had the power to do, the order contains no statement to that effect. This is a mistake which parties frequently make, but it does not seem to me that the court should attempt to extricate them from the consequences, by holding that an exception to the statement of the trial judge in a short decision that there was no evidence of a certain fact, which he found the other way, is sufficient to sustain the reversal in this court.
The judgment should, therefore, be reversed and that of the Special Term affirmed, with costs.
PARKER, Ch. J., BARTLETT, HAIGHT, MARTIN and WERNER, JJ., concur with VANN, J., for affirmance; O'BRIEN, J., dissents.
Order affirmed, etc. *Page 410